England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
SITTING AT NEWCASTLE-UPON-TYNE

IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF: D-C (A CHILD)

		The Law Courts The Quayside Newcastle-upon-Tyne NE1 3LA
		17th August 2016

JUDGMENT

HER HONOUR JUDGE HUDSON:

Introduction

1. I give this judgment in respect of an application by A to discharge the care order I made in respect of her on 22^nd August 2014. I heard evidence and submissions over the two days this case was listed on 4^th and 5^th August 2016 in the time available (together with other listed work) and a further two hours on 9^th August 2016. It was not possible to deliver judgment in the time then available, as a result of which I give judgment today, 17^th August 2016, the first opportunity for me to do so.
2. As I had been asked by A to do, in circumstances in which I could not give my judgment but had reached a clear decision, I informed the parties of my decision at the conclusion of the hearing on 9^th August 2016: that I refused the application to discharge the care order so that A would remain in foster care. I also made it clear, however, that I had not then reached a concluded view in relation to A's arrangements for contact with her mother, for reasons which I will come to later.
3. A is 14 years old and is the applicant in these proceedings. She has been represented by experienced and specialist family lawyers, both solicitor and counsel. My order dated 11^th February 2016 recorded the agreement between the parties that A was able to instruct her legal team directly, as a result of which she has not required a litigation friend.
4. The respondents to the application are the local authority, (LA), and A's mother, M. On 11^th January 2016, I appointed a children's guardian to represent A's interests in the proceedings. CG, who was not the children's guardian in the care proceedings, was duly appointed. She has not had legal representation in the proceedings. M was not legally represented at the early stages of this application, but has been represented at hearings by Mr Gilbert since 11^th February 2016.
5. A's application was made as long ago as 5^th November 2015. The proceedings have been delayed due to a range of issues, including A's representation in the proceedings and, once in place, the desirability of maintaining continuity in her representation at court through Miss Campbell. I am very grateful to Miss Campbell who has made herself available to represent A in the proceedings whenever possible.
6. On 2^nd March 2015, I refused an application by M for A to undergo a psychological assessment. I gave my reasons for concluding that the assessment was not necessary in the judgment that I gave. At an issues resolution hearing before me on 27^th May 2016, M, through counsel, made an application (which had not been forewarned) for me to recuse myself. This application was not supported by A or the local authority. I heard that application together with argument relating to the arrangements for a meeting with A. I gave judgment in relation to both issues on 3^rd June 2016 and refused the application to recuse. I understand that remains the subject of an appeal to the Court of Appeal.
7. I met with A on 27^th July 2016, the second time I have met her, having done so during the care proceedings in 2014 at her request. A was by choice accompanied by her foster carers and I was accompanied by a member of court staff. The meeting took place in accordance with parameters contained in the judgment I gave on 3^rd June 2016. I provided a note to the advocates following the meeting.
8. A attended the case management hearings on 11^th January, 11^th February, 2^nd March and 27^th May 2016, but did not attend when I gave judgment on 3^rd June 2016. In accordance with her own wishes, A did not attend the final hearing and did not give evidence. A's stance in relation to the final hearing was at odds with her mother who wanted A to attend the hearing, give evidence and be cross-examined about her wishes. A provided me with an email in advance of our meeting which set out her views and she had the opportunity of telling me in person at our meeting.

The Final Hearing

9. M is Brazilian and her first language is Portuguese. She previously had the assistance of an interpreter in the care proceedings. She is now herself working as an interpreter and did not therefore require any such assistance in the course of this application.
10. The local authority evidence was due to be given by SW1, A's allocated social worker since December 2015. On the first day of the hearing, Miss Henley (representing the local authority) informed me that SW1 was available to give evidence, although she had been absent from work due to ill health. SW1 had completed her examination-in-chief and Miss Campbell was about halfway through her cross-examination when it became evident to me that SW1 was not well enough to continue. She said she would be well enough to return the following day and left court on that basis.
11. Mindful of the limited court time available, I heard evidence from M during the remaining time on the first day of the hearing. This course was agreed by Miss Campbell and Miss Henley but opposed by Mr Gilbert on behalf of M. When I asked Mr Gilbert what prejudice there would be to M if she gave evidence before the completion of the social work evidence, with the proviso she could be recalled following the local authority case being closed, he conceded there was none. I therefore concluded that the need for the case to proceed to a conclusion in the time available had to take precedence over M's wish to give her evidence following the social worker. I therefore heard from M on the first day.
12. In the event, SW1 was not well enough to attend on 5^th August 2016 and was then provided with a two-week sick note from her doctor. I therefore heard from SW2, the social worker who had case responsibility between 1^st October 2015 and December 2015 and has since maintained involvement, particularly in the supervision of contact. Although this had not been envisaged and was not ideal, SW2 was able to deal with factual issues relating to contact. Although given the opportunity, Mr Gilbert did not seek to recall M following the social work evidence. Finally, I heard evidence from CG on 5^th August 2016 and her evidence was completed on 9^th August 2016 when I also heard submissions.
13. In SW1's absence, there were outstanding questions relating to the future management of the case if the care order remains in place, M's attendance at or other participation in the local authority meetings in respect of A and in respect of A's contact with her mother. I therefore gave the local authority permission to file a short document setting out its final position on these issues, having taken instructions from management and ascertained the views of the Independent Reviewing Officer. I gave M and Miss Campbell (on behalf of A) and also the children's guardian the opportunity to reply. I received a document from Miss Henley on 15^th August 2016 (albeit dated 12^th August 2016) and a response from Miss Campbell on behalf of A on 16^th August 2016. I received a letter from the children's guardian dated 16^th August 2016.
14. Finally, to complete this chronology, I should record that at 18.32 on 9^th August 2016, after I had given my decision, M emailed the court stating she is pursuing a private prosecution against me for perverting the course of justice. This is one of a large number of communications M has sent to a range of professionals over time, on some occasions copied to the court, in which she has made complaints about the actions of professionals involved with her children and has either threatened or, as I understand it, issued legal proceedings against at least some of them. The email to the court also reflects the position M gave in her evidence: that she does not accept the court's earlier findings and decisions; she has sought to appeal every decision and revoke or discharge the orders which have been made; she believes the orders are unlawful; she considers the judgments I gave concluding the care proceedings were based on lies; and she considers that I am biased.
15. M has not attended at court today when judgment has been given. I gave Mr Gilbert the opportunity of confirming whether she was intending to attend court. Having contacted his instructing solicitors, I was informed that M emailed her solicitors early this morning indicating that she did not intend to attend the hearing.

The Circumstances Leading to the Care Order in Respect of A

16. This is set out in detail in the judgment I gave in respect of A on 22^nd August 2014. The judgment was transcribed and is in the court bundle at A44. It is taken as read for the purpose of this judgment, although I will incorporate some passages into it.
17. A is the elder of M's two children. The identity of A's father has not been confirmed. A's sister, B, is now just 4 years old. Her father is CR. The children had always lived with M, and during their relationship also with CR, until they were accommodated with the local authority and placed in foster care in November 2013 in circumstances addressed in the judgment that I gave on 22^nd August 2014. I address the early background in paragraphs 23 to 27 of my judgment from 22^nd August 2014. At paragraph 27, I said this:

"A predominant theme in the proceedings has been the extent to which M's behaviour, particularly since the children were placed in foster care, is explained by her different cultural heritage, having a more expressive temperament. M accepts many of the recordings in which she is described as behaving in an abusive, aggressive and confrontational manner, whether the children have been present or not. She has explained this as part of her South-American temperament. Notably, throughout the eight days of the court hearing, including giving evidence at some length, there was no occasion in court when her behaviour was other than appropriate. There were no outbursts or angry responses during her evidence, despite the nature of the evidence which was frequently adverse to her case or questioning of her in cross-examination which was challenging her account of events."

18. I made findings in a number of areas in relation to threshold: at paragraph 43, regarding the abusive relationship between M and CR and the children's exposure to it; at paragraph 50 in relation to the cannabis farm at the family home which I found to be CR's enterprise, but about which M knew and from which she benefited; at paragraph 55 regarding M's leaving A, aged 11, with sole responsibility for B, aged 12 months, on more than one occasion; at paragraph 65, regarding home conditions and as follows in paragraphs (vi) to (xi) at A55 to 56:

"(vi) M's behaviour and presentation fluctuates rapidly and significantly so that she does not provide reliable or consistent care for the children. A and B have been distressed by their mother's behaviour;

(vii) M has been unable or unwilling to moderate her behaviour to protect her children from her aggressive and confrontational behaviour;

(viii) By her behaviour, M has failed consistently to recognise and/or meet the emotional needs of the children;

(ix) M has been unable or unwilling to cooperate with professionals involved with safeguarding the children's welfare;

(x) On 13th November 2013, A and B were upset by their mother's behaviour. A said she felt scared and unhappy and did not feel safe at home;

(xi) At the time of their accommodation M gave A no comfort or support, in contrast with her behaviour towards B."

19. I addressed the arrangements for M's contact in paragraphs 75 to 92. At paragraphs 78 to 79, I said this:

"78. The local authority evidence records numerous occasions when M's behaviour in contact has been inappropriate, when she has been rude, aggressive and abusive to supervisors, when she has discussed the court proceedings with A, when her behaviour has caused evident distress to A and to B and when she has surreptitiously given A items in contact such as a mobile phone and charger. As a result of these difficulties, two contact supervisors are present during contact.

79. In her oral evidence M agreed she had been very angry at times. She initially said this was only between November 2013 and January 2014 and that contact was 'fine' after that. After other examples were put to her, M agreed there had been difficulties thereafter."

I went on to highlight a number of examples.

20. At paragraph 92 at A59 I referred to M's evidence in the proceedings:

"92. Earlier in the proceedings M also sought to make contact with A (unknown to the local authority and unauthorised) by email and Facebook. M said in her evidence that she will continue to communicate with A as she wants. She referred once again to the 'illegal' contract of expectations which she does not consider bind her in a free country."

21. Paragraphs 94 to 96 recorded M's mainly admitted extremely difficult relationships with professionals. At paragraph 101, considering M's then circumstances, I recorded the following:

"M has an extremely negative view of the local authority and has made many and varied threats to local authority personnel. She does not consider any agreements with the local authority to bind her. Her threats to kill have extended to threats to the judge, District Judge Loomba, although M said in her evidence she realised that he had been tricked. M has sought advice and support from individuals who campaign for justice against what they consider to be the 'secret' family courts. She has spoken out clearly and loudly of her negative views about the local authority. She nonetheless said in evidence that she will now work with the local authority in the future and cooperate with the court."

22. I recorded M's living arrangements at paragraph 98. She had obtained alternative accommodation at the end of November 2013. Social workers had not visited the property in the light of her behaviour towards them but the local authority did not suggest that her home circumstances would prevent the children's return to M's care. M had consistently questioned why the children had not been returned to her once she obtained suitable accommodation.
23. I summarised the parenting assessment at M at paragraph 111 as follows:

"The assessment recorded positive aspects of M's parenting - her rich cultural and religious background as well as the good parenting she had afforded the children at times, reflected in A's educational success and her musical and artistic achievements. Susan Reed considered these were, however, overshadowed by M's abusive and unpredictable behaviour, the children's exposure to it and the impact of that behaviour on them."

24. Dr Stephanie Hill undertook a psychological assessment in the proceedings. M has placed reliance on Dr Hill's assessment, in that she concluded that M does not have any mental illness or personality disorder. I recorded that at paragraph 114 (A62) but went on as follows in the remainder of that paragraph and those following. I read from paragraph 114:

"Dr Hill was clear, however, that this does not mean that M's behaviour is not of concern. Dr Hill's opinion was that M's personality can prove problematic and challenging as a result of her strong views and beliefs and her resistance to challenge. Dr Hill's written and oral evidence highlighted M's highly critical and hostile views of both [CR] and the local authority.

115. Dr Hill did not consider that M would be capable of working positively with the local authority. She considered that M does not recognise authority, whether of the courts or otherwise. Dr Hill nonetheless highlighted the positive aspects of M's care of the children but also recorded her limited ability to empathise with them. Dr Hill did not consider M would accept the children's views if they differed from her own.

116. In her oral evidence, Dr Hill said the removal of the children has had a significant negative impact on M. She referred to a probable sense of anger and injustice as well as impotence. In her oral evidence, Dr Hill said M came closest to an adjustment disorder if a label were to be applied. Although she considered that M's functioning would improve to some extent if the children were returned to her care, she did not consider that M would be able to engage in any positive way with the local authority. Dr Hill said in her oral evidence that M would see any involvement as persecutory and unjustified.

117. Dr Hill's assessment was that the repeated threats to kill and to harm social workers and the threats, fewer but repeated, to kill the judge, referring to District Judge Loomba, were hollow. Dr Hill's opinion was that M would make significant efforts to disrupt any other placement for her children."

25. I set out the circumstances of my meeting with A at paragraphs 123 to 127. My conclusions in relation to M are at paragraphs 141 to 143 (at A66) where I concluded as follows:

"141. M disputes much of the local authority's case but accepts many of the incidents as recorded in the course of my judgment. She excuses or justifies her behaviour because of the circumstances in which she has been placed. I found there to be a singular failure on her part to accept responsibility not only for her behaviour but, much more importantly, the negative impact of it on her children. This was the case whether it related to events before or after their removal from her care.

142. M has said throughout that she has been unable to contain her behaviour towards social care professionals. The chronology of events records extreme outbursts, many of which have taken place in the presence of children, and threats to social professionals both at those and other times, (by way of example, the text messages sent to [a named social worker]). I find it striking that M was able to sit through an eight day hearing and give evidence at some length with barely a murmur of dissent throughout, even when she was challenged in cross-examination and when she heard evidence against her from the local authority witnesses, paternal family and children's guardian. She was, it appeared, very well able to control her emotions and behaviour. She told me she has not taken any medication for months now. Dr Hill was unable to shed any light on the issue. I was driven to conclude that, when she chooses to, M is well able to regulate her emotions and behaviour.

143. I have already recorded what I consider to be the most salient parts of Dr Hill's evidence in respect of M. I accept Dr Hill's evidence as I have recorded it. M has clearly shown herself able to engage professionals - the health visitors and the school providing clear examples. More recently, in relation to contact, M has been accepting of support from Families in Care. These contact visits have still not been without difficulty, by way of example with M continuing to make derogatory remarks about the children's foster carers. M said she was able to work positively with some social workers. I concluded that the difficulty in all of these relationships arises when M is challenged. I do not accept her evidence that she will work with the local authority in the future. I also concluded - on M's own evidence and otherwise - that she will not rest if the children are placed away from her, perhaps possibly if B were placed with MA. M has, in my judgment, the potential to cause significant disruption."

26. In relation to A, I reached the following conclusions at paragraphs 150 to 153:

"150. A is now aged 12. She is a bright and personable girl who appears somewhat older than her age. Her achievements at school (reflected in her very good end of year report) together with her varied cultural and musical interests are a credit to her mother's parenting as well as to A herself. She shares her mother's Brazilian heritage and her Hare Krishna faith. A is very clear she sees her future in remaining in England and staying at the same school; she has no desire to move to Brazil.

151. A has found foster care restrictive in circumstances in which she was allowed liberal access to the internet at home and also to films with 18 classifications. Those were simply examples of the freedom that she enjoyed at home which has not been considered appropriate since her placement in foster care as a 12 year old girl.

152. A undoubtedly loves her mother and has what appears to be a close relationship with her. She is loyal to her mother but I accept the guardian's evidence that it is a complicated relationship. A has consistently said she wants to go home to her mother. It is, in my judgment, difficult to be clear about A's views and the strength of them in the light of what I have concluded has been pressure and influence on her from her mother to say she wants to return home. A's letter indicates that she has given considerable thought to what a foster placement could provide for her. I concluded that A has some ambivalence about returning to her mother. These considerations reduce the weight I consider I can properly attach to A's views, taking account also that she is still only 12. A's lack of relationship with her sister is a concerning feature. I do not accept M's evidence that this is typical for a girl of A's age. A needs secure and reliable parenting in which her emotional needs are met as well as her physical, educational, spiritual, religious and cultural needs.

153. In the light of the findings that I have made, A has suffered significant emotional harm and/or is likely to suffer significant emotional and physical harm brought about by her exposure to the relationship between her mother and [CR], her exposure to her mother's volatile behaviour, the inappropriate care responsibilities given to A for her younger sister and the circumstances in which she was living in a home which also housed a Cannabis farm. This harm was attributable to the behaviour and actions of her mother and [CR]. A has continued to be exposed to her mother's extreme behaviours since her accommodation."

27. I went on to provide my reasoning for my conclusion that a care order and placement in long-term foster care was the only placement option which could meet A's welfare interests, despite the disadvantages I identified. I made a final care order in respect of A, approving the care plan including monthly contact.

The Proceedings in Relation to B

28. I did not make final orders in respect of B in August 2014 for reasons I gave in the judgment. The hearing resumed in January 2015. On 13^th January 2015, I made a special guardianship order providing for B's permanent placement with her paternal grandparents and for supervised contact between B and M six times a year together with a twelve-month supervision order. I made an order pursuant to section 91(14) of the Children Act 1989 preventing applications by M in respect of B under the 1989 Act without leave of the court for a period of two years. My judgment in those proceedings was also transcribed but does not form part of the bundle for this application.

Subsequent Litigation

29. M sought to appeal the final orders I made in respect of both A and B. The appeals were dismissed as totally without merit. A's application was issued on 9^th November 2015. In November 2015 M also issued applications in respect of B, seeking permission to apply to discharge the special guardianship order and for permission to apply for a prohibited steps order to restrict CR's contact with B. On 14^th February 2016, I refused those applications for leave. My judgment was transcribed and is at B35 in this bundle. M sought permission to appeal these decisions. Once again, her appeal was refused as totally without merit.
30. Most recently, M has sought to apply for permission to apply for a child arrangements order in relation to her contact with B. This is listed for directions on 19^th August 2016. The section 91(14) order continues until 13^th January 2017.
31. I record the history of the litigation as it is further evidence that M still fundamentally disagrees with the decisions I have taken in respect of both A and B.

A's Circumstances

32. A has now been in foster care for two years nine months. She has had three changes of placement since the care order was made. A moved to her current placement with FC on 1^st October 2015. On all accounts, this is a successful placement, notwithstanding A's stated wish to return to her mother's care. A continues to flourish at school. She is a bright, talented student who excels in all areas of the curriculum and otherwise. This is reflected in consistently good school reports.
33. A has supervised contact with M which is presently on a fortnightly basis. It takes place at a local authority venue and is supervised by two workers, as a result of what the local authority asserts are the difficulties in managing contact. M and A also have indirect contact by FaceTime, telephone and through other social media which is not authorised by the local authority.
34. A has not had any contact with B for a considerable time, as I understand it, since the care proceedings concluded. A has said she only wants contact with B if her mother is present. I will return to A and her circumstances further when I address my welfare analysis.

The Local Authority's Case about M's Behaviour

35. The local authority's case is that A's application was made at M's instigation and has been driven by her. The local authority relies on M's actions and behaviour in contact and otherwise in support of its contentions. In fact, although M's case is that she does not accept responsibility for the application, at times in her evidence her responses suggested she did. At one point, she said "Maybe I thought the court would consider an application more favourably by A than me. I put her up to it. Why not?"
36. Having heard M's evidence, there are, in fact, very few factual issues relating to contact and the evidence relied upon by the local authority. I will consider some of these areas briefly.
37. At contact on 19^th November 2014, M accepts she told A she was appealing the care order and would get A home. She further agreed she told A that she, A, should get a solicitor herself and get the care order revoked. In her oral evidence, M said A needs to know what is going on and the challenges that she, M, is making to the local authority and the court's decisions.
38. At contact on 9^th September 2015, M again told A to get a solicitor. The contact recording states that M did not ask A how she was until after she told her to get a solicitor. In due course, it was M who made arrangements for A's representation by her current solicitor. In her oral evidence when asked about this, M said that she and A also discussed these issues outside of contact, on M's account because A wants to.
39. At contact on 24^th September 2015, M agrees she discussed A making an application to court. M produced a form for A to complete and told A she should ask for a new judge and no representative from CAFCASS. They spent time trying to complete the form during the contact session. In oral evidence, M said she told A in contact that she had done all she could to appeal and had failed, in response to which A said she wanted to apply herself.
40. M also agreed she showed A a book with a piece about a boy who received compensation because of failures by a local authority in looking after him. The contact record states that M said the boy got £3,000 but that A should get £300,000. M said, in fact, she had said that A should get £3 million. M said she told A she should get compensation as she was removed from her unlawfully.
41. At contact on 4^th November 2015, M told A she had legal documents for them to complete for the court. M agrees the social worker, SW2, told her not to but she continued. In her evidence, she said it was her right to do so. The contact recording states that M referred to the social worker as a "fucking retard." The social worker confirmed this is accurate. M said she remembered being told not to complete the form and she called the social worker a name in response. M also agrees she said the social worker and solicitors were liars and mentioned one social worker by name and said that he had abused B. When asked about this in evidence, M said A knows social workers and solicitors are liars. She went on to say she tells A everything in contact, by telephone and email.
42. At contact on 16^th December 2015, M produced a statement for A to sign to confirm that CR pushed her down the stairs in respect of her litigation concerning B. M also gave A a book for Christmas about human rights and told A to read particular sections for court.
43. At contact on 30^th December 2015, M read sections of the human rights book and referred A to particular sections. M said she did not remember referring to the social workers as "bastards" as recorded but said she told SW2 she would prosecute her personally because she told her not to speak to A about court proceedings.
44. The two contact visits before the hearing on 4^th and 5^th August did not take place. One was rearranged, apparently because of A's visit to me, and M said she was not available on the rearranged date. On the other occasion, M said she was working. M said she understood that A was distressed but that A understood that she needed to work. M said in evidence that, despite otherwise having telephone contact and through Facebook and social media, A had ceased that contact over the previous month as A was fed up of talking about the court case.
45. M was also asked about recordings from contact of other things she had said to A during contact visits. M agreed she had said the following. She has told A what a pimp is. She has told A never to leave food or drink and never to trust anyone. She has told A not to go to a gym, that they are for stupid people and men. She has told A to do Kung Fu as there are too many rapes, in response to A saying she no longer wanted to do Kung Fu. She has told A that white men are dirty and she has referred to A as fat; M said in her evidence that she told A she needed a better diet. At various stages in her evidence, M agreed she has a heavy influence on A. M said she has told A the local authority has falsified evidence against her and committed perjury.
46. Apart from her statements and actions in contact, M agrees she has pursued her criticisms of the local authority and her views against the system, as she puts it, online. M and her friend and former McKenzie Friend, JM, have posted widely online, expressing their criticisms of the local authority and the court system. The local authority evidence includes a posting from JM which names M as a victim of a serious miscarriage of justice as a result of what he describes as the "Notorious UK Family Court System." The posting continues:

"Beware. Social workers can be the most devious, vile, underhand, unscrupulous, vicious, destructive people on the face of this planet and judges in the Family Court System are completely biased. I have seen this method used. I understand how it works. Expressing it, however, is profoundly difficult."

47. M agreed that any postings of JM's she likes, she puts on her own Facebook. In her evidence, she described JM as a very important source of support in her application and other aspects of her life. M recognises that A has access to this material in this way.
48. The children's guardian's report at E6, paragraph 7, deals with a YouTube posting by M in respect of A and M's criticisms of the local authority and professionals. She describes one of particular concern as follows:

"An example was 'A, Prisoner of State UK England, 6^th October 2015' which featured photographs of A overlaid with critical and derogatory comments about professionals and the local authority and the court. I expressed my concerns to M about the implications for A in the long term should a prospective employer or university Google 'A'. M subsequently removed this and other postings of a similar nature."

49. In her oral evidence, M was asked about potential implications for A. As the children's guardian highlights, there could be implications as it appeared to be a posting by A herself and could affect her future applications to university or employment. M disputed that the postings are negative. She said, "They are fact."

The Local Authority's Management of the Case

50. It will be evident from what I have already said that relations between the local authority and M have been and continue to be difficult. Apart from the arrangements for contact with two supervisors, M has not been invited to Looked After Reviews as a result of past meetings and what the local authority says is M's unacceptable behaviour. I made findings about M's behaviour in my judgment in August 2014.
51. Cases such as this are undoubtedly difficult to manage but, as Miss Campbell and Mr Gilbert submitted, it is all the more important that the local authority ensures it follows proper procedures and fulfils expectations. In this regard, the local authority's failure to complete an assessment of the risk of moving contact into the community in 2015 merits recording. I was particularly concerned by the continuing absence of minutes from the April 2016 Looked after Review in circumstances in which M is not present and her views are ascertained in advance. This situation is unacceptable and the explanation, that of pressure of work, is not sufficient where a parent or representative is not at such meetings.
52. During the evidence that she was able to give, SW1 said she has been able to work reasonably positively with M. She was willing to consider progressing the contact to better meet A's wishes for contact in the community without supervision. SW1 was clear, however, that it would be dependent upon the success of any progression of contact and M's cooperation with the arrangements. SW1 was also open to the prospect that M should be given the opportunity of attending review meetings once again. She said the decision would, however, be for the IRO. Consultation with the IRO has confirmed that she will revisit the issue for the next and future reviews. She has indicated that M will be invited to the next review provided her behaviour in the interim period indicates that that continues to be appropriate. These arrangements will be subject to ongoing review.
53. The local authority has produced a number of different contracts of expectations relating to contact arrangements. These have all included a prohibition on the indirect contact which the local authority recognises that A has with her mother and which everyone expects will continue. I expressed my view that such a provision is unrealistic and unhelpful in such circumstances: it simply invites a breach and downgrades other parts of the framework. I also expressed my views during the evidence that such documents should be two-way, identifying expectations on the parent and the local authority.

The Legal Framework

54. This was set out by Miss Campbell in her case summary and was not contentious. I therefore adopt Miss Campbell's formulation at paragraph 10 of her case summary as follows:

"A care order may be discharged by a court on the application of the child herself and, in deciding the application, the court must apply the principle of the paramountcy of the child's welfare and have regard to the matters in the statutory welfare checklist. The burden of showing that the welfare of the child requires revocation of the order is on the person applying for the discharge. In considering any harm which the child has suffered or is at risk of suffering, the risk to be considered will normally focus on recent harm and an appraisal of current risk. Conclusions reached at an earlier hearing will be of marginal relevance and historical interest only but earlier conclusions may be examined afresh in the light of new evidence (Re S (Discharge of Care Order) [1995] 2 FLR 639)."

The Risks

55. At the time I made the care order in respect of A, I made findings in a number of different areas which I concluded placed A at risk of emotional and potential physical harm. It is clear that a number of the matters which formed the subject matter of those findings are no longer in issue: the relationship between M and CR ended in 2013 and has not resumed; there is no evidence of M having another relationship; there is no evidence of drug misuse by M or any involvement in drugs whatsoever; B is no longer in her mother's care, although M believes that she should be.
56. The risk relied upon by the local authority is risk of emotional harm to A arising from M's continuing volatile behaviour and the impact of it on A. The local authority submitted that A needs the freedom to thrive in a way that she cannot if she returns to her mother because her mother will require A to live the life she chooses and will not prioritise A's welfare over her own. This position is endorsed by the children's guardian, both in her report and in her oral evidence.
57. M does not accept she has posed any risk of harm to A or that she may do so for the future. On behalf of A, Miss Campbell stressed the need to balance the risk of harm to A by exposure to her mother's behaviour against the risk of emotional harm if she is not returned in accordance with her wishes, is separated from her mother and with her wishes and feelings not being followed.

The Welfare Analysis

58. A's welfare is my paramount consideration. She is now 14 years 7 months of age. She is described by the children's guardian as thoughtful and bright. She is hardworking and high achieving at school. She continues to maintain a strong spiritual life and is a committed member of the Hare Krishna faith. A is polite and articulate. Miss Campbell in submissions accurately described her as a talented and well-rounded young woman. Apart from reflecting very well on A herself, this must also reflect the positive aspects of her upbringing by M before A was placed in foster care in August 2013 (when she was 12).
59. A is close to her mother. They are described as having a loving and warm relationship. The children's guardian described A as very loyal to her mother which reflects the view of other professionals. A is inevitably influenced by her mother. M acknowledged that herself in her oral evidence, as A will also be influenced by other factors and people.
60. There is evidence from more recent contact that A is starting to deflect and divert conversations away from areas that she does not wish to discuss. On M's evidence, A has chosen to suspend their communications by email, telephone and Facebook because, in M's words, "A says she has had enough of talking about court." Against this background, I consider the factors listed in the welfare checklist, so far as I consider them of particular relevance.

Wishes and Feelings

61. I start by recording the wishes and feelings that A expressed in her email to me on 14^th July 2016:

"I was never in any physical or emotional harm in my mother's care. She looked after me so well, so I don't understand why social services think she is bad for me. CR was the reason I'm in care. Before that, everything was nice and normal until he came along. He was the one that was harmful. I miss my mum and my sister, B, and my cats and this is my chance to return back home. I do like my carers, FC, but my mum is always my first option because I've known and loved her all my life."

62. This was reflected in our meeting, when A repeated her wish to return home. She said she feels strongly that her mother will put her, A's, wishes before her own. A said she felt it was her last chance to return before she is 16 or 18. A has been consistent in saying she wants to return to her mother's care since her placement in foster care. Apart from her close relationship with her mother, she does not want to be in care and has only told a few of her close friends she is.
63. A is, however, settled in her current foster placement. It was pleasing to meet A with her foster carers and to see that she could openly discuss her wish to return to her mother in her foster carers' presence, whilst acknowledging she has enjoyed being with them and would wish to remain with them if she cannot return home.
64. A has not responded angrily to her continued placement in foster care and has not sought to leave or disrupt it. Miss Campbell properly invites me to consider that in the context of A's behaviour overall (which is generally compliant) and in the knowledge that A responded to her foster carers' advice previously that a letter that she had written expressing her wish to return to her mother was unhelpfully aggressive.

A's Physical, Emotional and Educational Needs

65. There is no question about A's physical and educational needs being appropriately met by either her mother or in foster care. The issue is her emotional needs: her wish to be with her mother and the advantage that brings in embracing her cultural and religious needs and in terms of her overall identity, balanced against the risk of emotional harm by exposure to her mother's volatile behaviour and her uncompromising views generally with the impact they may have in preventing A developing her own identity through her adolescence.

Age and Particular Characteristics

66. A is now 14½. Miss Campbell submits that she is relatively resilient and has been able to distance herself from her mother's behaviour and attitudes in her own dealings with the local authority and her foster carers. The local authority draws a distinction between A's ability to deal with her mother's behaviour in contact and the impact if she is living at home with her mother, where it argues A would become embroiled in her mother's campaigns. The view of the children's guardian is that A's developing sense of independence is intrinsically bound up in the fact she is in foster care and that there is a physical distance between her and her mother, which the guardian considers facilitates an emotional distance on A's part.

The Harm and Risk of Harm

67. I have already alluded to these issues in my judgment. There is a balance to be struck between the two alternatives.

M's Capability to Parent A

68. The issue is the risk of emotional harm. M's stance in her evidence was forthright. She does not accept any shortcomings in her behaviour and, therefore, sees no reason to moderate it or change. M and Miss Campbell argue that if A returns to her mother, a significant part of her argument against the local authority and other bodies would disappear. The local authority and the guardian point to the wide-ranging nature of M's disputes, not least the question of B and ongoing litigation concerning her.
69. The second issue is whether M's parenting of A would allow A to achieve her own independence and maturity, rather than her mother making A's life choices for her. As the children's guardian put it in her evidence, M expects A to see things her way. The guardian said part of a parent's role is to prepare a child for the world and making independent choices. She considered A's ability and opportunity to take responsibility for what she wants to do will be restricted by M's view of what that should be. The guardian's view is that foster care has given A the ability to start to develop her own self, but that it is at an early stage. The guardian stressed her concern that if A returns to her mother's care, she will retreat into doing what her mother wants her to do.

My Overall Conclusion

70. In my judgment in August 2014 I balanced the two placement options for A, placement with her mother and placement in foster care, at paragraphs 154 and 155. I was struck rereading these paragraphs two years on how the central issues remain as relevant now as they were then. Balancing A's wishes and other benefits placement with her mother would provide must be seen in the light of the associated risks and be balanced against the positives and negatives of foster care. A is now two years older and her wishes are to be given increased weight as a result.
71. In those paragraphs, I anticipated the increasing need for A to have a safe and consistent environment during her adolescent years - the intervening period has given a sharper focus to that - A's need to develop her own identity and self. I agree with the local authority and the guardian's analysis of the risk to A of return to her mother's care: of her exposure to her mother's volatile and confrontational behaviour with those who do not agree with her, particularly in relation to her children, and the impact of M's determined belief in her own choices for A upon A's need to explore her own way forward in life. It was striking to hear M's completely uncompromising views in evidence as to past events and her entitlement to do as she sees fit in the future.
72. I accept A's first wish is to live with her mother - because she is her mother, she loves her, is loyal to her and wants to please her. I am, however, satisfied that this application was prompted by M and has been driven by her. It is, in my judgment, telling that A has resisted opportunities to speak to her mother in recent weeks to avoid the issue. I have also concluded that A's settled situation with her foster carers is a reflection of the positive way that her needs are being met in that placement - recognising the importance of A's relationship with her mother, whilst giving a supportive environment in which A is maturing. I have further concluded that the likely emotional harm to A of return to her mother's care outweighs the harm to her in remaining in foster care and is not in her welfare interests.
73. As I said to A when we met, my decision is the one I consider will best meet her welfare interests. I reached a clear conclusion, having considered the written and oral evidence and submissions, and so I was able to give my decision on 9^th August 2016: that A's welfare interests are met by her remaining in local authority care and, in accordance with the local authority's care plan, with her current carers. I therefore indicated to the parties that I would refuse the application by A for discharge of the care order.
74. I have considered whether A's wish to return home could reasonably be tested out with the prospect of a return to foster care if the arrangement did not meet A's welfare needs. I have concluded the risk is too great, with what I have concluded is a very high risk that the arrangement would not succeed over time. Apart from the harm of a further placement breakdown, the high probability is that A could not then return to her current foster placement which is meeting her needs so well. It was in these circumstances I indicated my refusal of the application to discharge the care order.

Contact

75. A wants contact with her mother to be more normal, in the community and unsupervised. This is an entirely understandable wish on her part. The local authority is under a duty to promote reasonable contact. In the event that there is no clear plan to progress the contact in this way, Miss Campbell argues that an order for direct contact is required. The local authority resists an order for contact being made. Miss Henley's position statement confirms the local authority will comply with a contact regime indicated as appropriate by the court, without the need for an order. The position statement states the local authority will provide a revised contract of expectations, including the obligations on the local authority as well as expectations of M, and will provide for a progression of contact subject to M's cooperation with the agreement and her behaviour towards professionals.
76. In response, Miss Campbell set out A's position. She would like unsupervised contact in the community immediately. In her oral evidence, the children's guardian advocated a gradual relaxation of the arrangements subject to ongoing review but with a clear framework known to the local authority, M and A, so A would understand the way in which the contact could progress subject to her mother's cooperation with the arrangements. The guardian said the timescale did not need to be very long but would depend on the completion of each stage. I asked her to outline a potential plan for the progression of contact. She said the first stage could reasonably be one supervisor rather than two on what she considered would need to be at least two occasions. Provided that was successful, the contact could move to a community venue with a supervisor for what she considered would be at least four sessions. The next stage, subject to satisfactory completion of the early stages, could be a gradual withdrawal of supervision so that the supervisor was present at the beginning and end. The period during which the contact is unsupervised could increase until the contact ultimately became unsupervised, taking place at agreed venues. If the plan proceeded without difficulty, the guardian envisaged this process could be completed in three to four months.
77. The local authority position statement states that senior management would need to be confident of staff safety before contact could progress to community based. In the light of the recent missed contact visits, the local authority proposes that M confirms her attendance before contact to avoid disappointment for A.
78. The children's guardian provided her response to the local authority's document in a letter dated 16^th August 2016 in which she said this:

"The local authority has indicated that it will produce a revised contract of expectations which will include their obligations and the expectations of M with regard to contact. It has not set out in the statement specific expectations in respect of M, nor does it indicate what would be positive indicators that would lead to progression of the arrangements for contact, for example a reduction in the staff required to supervise contact or a change of venue for contact. In addition, such a contract should also make explicit the consequences of negative behaviour on the part of M. Having a very detailed contract of expectations which sets out how progress is to be achieved as well as what would impede it is an essential tool, in my view, in moving matters forwards. The detailed nature of a contract of expectations would, I believe, mean that if it is not possible to progress contact, it is clear where responsibility for this lies, for example, if M behaves in a way that has been specified as being unacceptable. Similarly, if there is evidence of positive behaviour as specified in the agreement, then the local authority would have to acknowledge it as evidence of contact being able to progress. A wants to be able to spend more time with her mother in a more normal setting and hopes that ultimately it can be unsupervised. Being made aware of the content of the contract of expectations would, I believe, be of help to A so she has an understanding of the basis of decisions being made about the time she spends with her mother and to develop a more realistic picture about what underpins the decision-making process. It is important that A and her mother, M, have confidence in the local authority's intention to progress the arrangements for contact. In my view, being provided with a more detailed framework at this stage would have given them that confidence. The local authority has not, in my view, provided the detailed framework that sets out how A will be able to develop her relationship with her mother in a way that is safe but also meets her needs."

79. I agree with these views expressed by the guardian in this letter. I have therefore considered how the contact issue is best addressed. I consider that making a contact order is unlikely to meet A's welfare interests because of the need for the local authority to respond to circumstances as they develop. A balance needs to be struck between A's wish for more normal contact and ensuring the arrangements provide for safe contact for A and for the local authority staff. I agree that a framework needs to be clearly set out, both in terms of the proposed progression of contact and the contract of expectations. In principle, the guardian's outline plan is, in my judgment, an appropriate progression but subject to M and the local authority adhering to a clear contract of expectations at each stage. It is also appropriate, in my judgment, that M provides confirmation of her attendance. I agree that it would be helpful for A to be aware of the position, as the children's guardian has proposed.
80. The local authority has not provided the detailed framework or contract referred to by the guardian. It is, in my judgment, important that these documents are drawn up before these proceedings finally conclude. Apart from the continuing involvement of the guardian, it is important for A that the framework is in place.
81. A is very keen for these proceedings to conclude. I will hear representations about the way that this issue is, therefore, addressed. Miss Campbell made it clear that, in the event an application for discharge of the care order is not successful, her application is for contact in the alternative. One option is to defer making the final orders in respect of the application to discharge the care order until the contact issue is resolved. An alternative may be that I make an order refusing the application to discharge the care order but the order records the alternative application for contact which was made orally by Miss Campbell, which is not finally concluded pending provision of the plan for the progression of contact and the contract of expectations being approved by the court.
82. Before I finally conclude my judgment, I also record my position in relation to M's attendance at local authority meetings. I agree she should be given the opportunity of attending as the local authority has accepted. Her ability to do so in the future will depend on her behaviour on an ongoing basis.
83. I will direct a transcript of my judgment. Subject to matters arising, that concludes my judgment and so that leaves outstanding the issue of how I deal with the proceedings at this stage.
[End of Judgment]